Meijken Westenskow Assistant Director of Academic Success and Professor of Practice, UNT Dallas College of Law
FALL 2021 ISSUE FAMILY LAW
When Sofia was 15 years old, she ran away from home with her boyfriend Lucas, who was 28 years old. Lucas immediately insisted that Sofia start working, and the relationship transitioned from a romantic one to one driven by Lucas’ demands for more money. For the next several years, Sofia crossed the country in search of regional farm work. Sofia worked long hours, even after she became pregnant, and Lucas took all her earnings. Lucas punished Sofia if her earnings were “insufficient,” and he perpetuated a pattern of emotional, physical, and sexual abuse. Sofia repeatedly considered escaping, but Lucas convinced her that, if she ever tried to leave him, then she would be arrested and deported because she was living and working illegally in the United States. Lucas threatened that any court would award him custody of their child, and Sofia would never see him again.
When Lucas suggested that Sofia’s son leave school and start working, Sofia fled. Sofia left everything behind, and she moved across several states to ensure that Lucas could not find her. Sofia contacted a domestic violence agency to ask for financial help. She told an attorney that Lucas purchased property in her name, and he added his name to the deed as her common-law spouse. The attorney suggested that Sofia file for a divorce to get access to the property and receive child support payments. Yet Sofia was unwilling to initiate proceedings because she was fearful that Lucas would find where she was living. She was also terrified that, if a court ordered Lucas to pay child support, then he would also have a right to visit with Sofia’s son. Sofia believed that Lucas would use such an opportunity to kidnap or harm Sofia’s son as retaliation for her leaving.
Defining Human Trafficking Human trafficking is modern-day slavery. It involves the use of force, fraud or coercion to compel the services of another individual, often with no or inadequate pay.¹ Forced services include but are not limited to sex work, migrant farm work, cleaning services, and work in childcare, construction, hospitality, factories, and landscaping.²
There may be as many as 40.3 million victims of trafficking throughout the world³ and 313,000 victims of human trafficking in Texas at any time.⁴ Trafficking is big business in the state; traffickers in Texas exploit approximately 600 million dollars from victims of labor trafficking each year.⁵ Trafficking survivors may be of any age, race, ethnicity, sex, gender identity, sexual orientation, nationality, immigration status, religion, socio-economic class, or education attainment level.⁶ Yet women and girls are disproportionately affected by trafficking; women and girls constitute 99% of victims in the commercial sex industry and 58% of victims in other industries.⁷ While trafficking is often associated with illegal immigration, the U.S. Department of Justice found that 83% of sex trafficking investigations between 2008 and 2010 involved U.S. citizens, and 33% of labor trafficking investigations involved qualified aliens or U.S. citizens.⁸
Needs of Trafficking Survivors Trafficking survivors encounter a dizzying array of needs. Survivors may require: medical and mental health services to recover from trauma; support through the criminal justice system if their trafficker is prosecuted or the survivor needs to expunge criminal charges related to the trafficking; employment law services to secure back wages or other benefits; support accessing public benefits, including immigration benefits; representation to secure protective orders; access to family law courts, etc.
A survivor needs access to family court systems if she or her children are related to her trafficker. Family members and intimate partners frequently perpetuate trafficking—9% of adult cases and nearly half of child trafficking cases begin with some family member involvement, and 15% of adult and 14% of child survivors are recruited into trafficking by intimate partners.⁹ Yet individuals who are trafficked by partners or family members are less likely to report abuse and seek services. Survivors may hesitate to report abuse for fear of harming a loved one or bringing shame to the family, and others may remain in the relationship because the trafficker uses the family relationship to perpetuate control by threatening to harm or take the survivor’s children.¹⁰ Abuse within family relationships is sometimes normalized or seen as a “personal” matter that does not warrant external interference, and patriarchal norms may further bolster the trafficker’s dominance and lead survivors to minimize abuse.¹¹ For these reasons, trafficking relationships perpetuated by a family member or partner are the “most perilous and the hardest to escape.”¹² These same factors may cause survivors to be reluctant about accessing court systems, where their loved ones may be harmed and where survivors’ experiences are made public.
Even if survivors escape relationships involving family members, they may find that family court systems are ill-equipped to deal with their extensive and particular needs. Judges may be unaware of the ways in which trauma may affect a survivor’s credibility or responses. Often, the trafficker may have coerced the survivor to engage in activities, including sex work, that bias a court’s perception of the survivor and his/his parenting, increasing the risk that the court will award custody to the trafficker. Trafficking survivors may have unique safety concerns based on a risk of retaliation, especially if the trafficker is connected to a criminal network. Because intimate partner trafficking overlaps with domestic violence, courts may view trafficking survivors’ needs as identical to those of domestic violence survivors, but trafficking survivors may also have unique needs, including a high level of traumatic symptoms, an unwillingness to accuse the trafficker, and a corresponding tendency to self-blame and minimize abuse.¹³
In Texas, the Family Code (the set of laws governing family law proceedings and outcomes) includes a number of statutory requirements that are particularly problematic for survivors of trafficking:
Information Disclosure Section 105.006 of the Texas Family Code requires each party to disclose and continuously update their phone number(s) and mailing, residential and employment addresses, and this information is included in any final divorce decree or child custody/support order.¹⁴ The statute does offer an exception if the court finds that such notice is “likely to cause the child or a conservator [parent] harassment, abuse, serious harm, or injury,”¹⁵ but that provision relies on the discretion of each judge and is not uniformly enforced. Trafficking survivors often escape at tremendous risk to their own safety. The privacy of their location is paramount, and they may be at risk if their trafficker even learns of the general area where they are living. Opening a suit in family court consequently includes tremendous risk of exposure for the survivor and his/her family, especially if the court fails to employ the available confidentiality protections.
Visitation The Texas Family Code promotes outcomes in which children have “frequent and continuing contact with parents who have shown the ability to act in the best interest of the child.”¹⁶ Despite this presumption, courts must consider evidence of family violence or sexual abuse when determining whether to grant an abusive parent visitation with a child,¹⁷ and there is a rebuttable presumption that a parent who perpetuated family violence within the two years before the suit is filed should not have unsupervised access to the child.¹⁸
Yet the same provisions give courts significant discretion to award an abusive parent visitation if the court finds that awarding the parent access would not endanger the child, so long as the court crafts an order that protects the safety of the child and any parent.¹⁹ In practice, there is a strong preference for parental access, and many judges exercise discretion to find that a parent should have regular and unsupervised visitation with their children, despite evidence of family violence.
Moreover, many judges interpret “violence” narrowly, and only consider evidence of physical or sexual abuse, which aligns with the statutory definition of family violence.²⁰ This narrow reading ignores many of the way in which trafficking survivors are controlled and coerced, which may exclusively involve psychological abuse and/or threats of economic harm, public exposure, or reports to immigration authorities.²¹ In fact, data suggests that traffickers use physical abuse in fewer than 40% and sexual abuse in fewer than 20% of trafficking cases.²² After survivors are exposed to various tools of intimidation, survivors become extremely susceptible to even subtle signs of anger and aggression such that traffickers “rarely need to resort to force.”²³ The Family Code does not offer protections based on those kinds of coercive control. Consequently, even if a survivor believes that her children will be at risk if forced to have ongoing and/or unsupervised contact with the trafficker, the court may not view those threats as justification to override the strong preference for ongoing and unsupervised access between parent and child.
In addition, the protections of the Family Code only require courts to consider evidence of family violence within the two years preceding the filing of the suit. Yet trafficking survivors may wait several years before filing for protections in family courts as survivors are likely to avoid the risk of exposure and will only file suit if there is an absolute necessity for a court order. Consequently, even if there is physical or sexual abuse within the trafficking relationship, survivors may file too late to benefit from the presumptions established in the Family Code.
Finally, many traffickers who are savvy about court systems know the boundaries that will subject them to risk, and they will perpetuate controlling behaviors that fall short of the standards that trigger legal protections. For example, one survivor reported that her trafficker was arrested after a health care provider noticed the survivor’s injuries and reported the trafficker. After that point, the trafficker stopped perpetuating physical abuse and relied on threatening conduct, financial control, and threats to the survivor’s family to perpetuate control. These behaviors fell short of “family violence” as defined by the Texas Family Code. Consequently, the survivor decided not to file for custody because she feared that her trafficker would gain unsupervised access to her child.
Joint Managing Conservators Section 153.131 of the Texas Family Code creates a presumption that it is in the best interests of the child that both parents be appointed as “joint managing conservators” of the child. Under Texas law, the term “conservatorship” is synonymous with “custody,” and a joint managing conservator has the right to receive information about the health, education and welfare of the child, including the right to access medical and educational records.²⁴ Joint managing conservators also have the right to consult with school officials, attend school activities, and consent to medical treatment.²⁵
Under Section 153.004, the court may not appoint a parent as a joint managing conservator if there is “credible evidence” that the party has a history of child neglect, physical abuse, or sexual abuse directed to the other parent or a child.²⁶ Yet as stated above, courts interpret these provisions narrowly and often designate both parents as a managing conservator. This means that survivors of trafficking are required to maintain contact with a trafficker to provide information about the children. Moreover, a joint managing conservator has a right to visit the child at school, which creates a significant risk that the trafficker may kidnap the child to retaliate against or to further control the survivor.
Conclusion The work of advocates and those in law enforcement has increased awareness of human trafficking during the last several decades. Collaboration between these communities has resulted in a largely victim-centered approach that recognizes the unique needs and vulnerabilities of survivors. Yet awareness has not trickled through all systems that survivors are accessing as part of their recovery, which requires advocates to explicitly address survivors’ needs within those systems. The Family Code offers protections, and advocates must ensure that courts harness those protections to shield survivors from further exposure to traffickers’ coercive tactics. Advocates should also seize opportunities to train and educate court officials, including by utilizing the testimony of trauma experts, to ensure that courts understand the dynamics of trafficking. Finally, advocates should encourage legislative reforms that define violence and control more broadly, enabling courts to enforce protections outside of situations in which abusers perpetuate physical and sexual violence.
Sources ¹ Trafficking Victims Protection Act, 22 U.S.C. § 7102(11). Texas defines “trafficking” as transporting, enticing, recruiting, harboring, providing, or otherwise obtaining another person by any means. Tex. Pen. Code § 20A.01(4). ² Noel Nale Busch-Armendariz et. al., Human Trafficking by the Numbers: Initial Benchmarks of Prevalence & Economic Impact in Texas, INSTITUTE ON DOMESTIC VIOLENCE & SEXUAL ASSAULT, THE UNIVERSITY OF TEXAS AT AUSTIN, 15 (2016); About Human Trafficking, U.S. DEPARTMENT OF STATE (October 26, 2021, 3:19pm), https://www.state.gov/humantrafficking-about-human-trafficking/. ³ Global Estimates of Modern Slavery: Forced Labour and Forced Marriage, INTERNATIONAL LABOUR ORGANIZATION AND WALK FREE FOUNDATION, Geneva 2017, available at https://www.ilo.org/wcmsp5/groups/public/@dgreports/@dcomm/documents/publication/wcms_575479.pdf. ⁴ Busch-Armendariz, Human Trafficking by the Numbers: Initial Benchmarks of Prevalence & Economic Impact in Texas, supra, at 13. ⁵ Id. at 14. ⁶ About Human Trafficking, supra. ⁷ Forced Labour, Modern Slavery and Human Trafficking, INTERNATIONAL LABOUR ORGANIZATION (October 29, 2021, 9:13am), https://www.ilo.org/global/topics/forced-labour/lang--en/index.htm ⁸ Characteristics of Suspected Human Trafficking Incidents, 2008-2010, U.S. DEPARTMENT OF JUSTICE (April 2011), available at https://bjs.ojp.gov/content/pub/pdf/cshti0810.pdf. “Labor trafficking victims were more likely to be identified as Hispanic (63% of victims with known race) or Asian (17%) compared to sex trafficking victims, who were more likely to be white (26%) or black (40%).” ⁹ Family Members are Involved in Nearly Half of Child Trafficking Cases, THE COUNTER-TRAFFICKING DATA COLLABORATIVE, (October 29, 2021, 9:22am), https://www.iom.int/sites/g/files/tmzbdl486/files/our_work/DMM/MAD/Count.... ¹⁰ Dorchen A. Leidholdt, Human Trafficking and Domestic Violence: A Primer for Judges, 52 Judges J. 16, 18 (2013). ¹¹ Id. ¹² Busch-Armendariz, Human Trafficking by the Numbers: Initial Benchmarks of Prevalence & Economic Impact in Texas, supra, at 25. Leidholdt, Human Trafficking and Domestic Violence: A Primer for Judges, supra,at 18. ¹⁴ Tex. Fam. Code § 105.006(a)-(b). ¹⁵ Tex. Fam. Code § 105.006(c). ¹⁶ Tex. Fam. Code § 153.001(a)(1). ¹⁷ Tex. Fam. Code § 153.004(c). ¹⁸ Tex. Fam. Code § 153.004(e). ¹⁹ Tex. Fam. Code § 153.004(d-1). ²⁰ Tex. Fam. Code § 71.004. ²¹ Exploitation of Victims: Trends, THE COUNTER-TRAFFICKING DATA COLLABORATIVE, (October 29, 2021, 9:26am), https://www.ctdatacollaborative.org/story/exploitation-victims-trends. These methods of control are used in more than 50% of labor trafficking cases. ²² Id. ²³ Dorchen A. Leidholdt, Human Trafficking and Domestic Violence: A Primer for Judges, 52 Judges J. 16, 18 (2013). ²⁴ Tex. Fam. Code § 153.073. ²⁵ Id. ²⁶ Tex. Fam. Code § 153.004(b).